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States Find Legislating Social Media Is a Minefield

a verdict one hour before that news became public. The court cited juror misconduct when granting Dimas-Martinez, who had been sentenced to death, a new trial.

“Because of the very nature of Twitter as an online social media site, Juror 2’s tweets about the trial were very much public discussions,” wrote Associate Justice Donald Corbin. “Even if such discussions were one-sided, it is in no way appropriate for a juror to state musings, thoughts or other information about a case in such a public fashion.” Corbin also recommended that the Arkansas Supreme Court Committee on Civil Practice consider restricting jurors’ access to their mobile phones during a trial.

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In Massachusetts, the state Appeals Court this May directed judges to do a better job of explaining to jurors that they cannot post to Facebook and Twitter details about cases they are hearing. The court also urged judicial officers to monitor jurors’ social media postings during trials when possible.

The court directions stemmed from a 2009 case from Plymouth, Mass., in which the defendant was convicted on 12 counts of larceny. But, as happened in Arkansas, defense attorneys found Facebook posts from two jurors related to the case. In one instance, a juror’s friend responded to a post by saying: “Tell them that you asked all your friends and they think GUILTY.”

The Appeals Court upheld the conviction, concluding that the posts hadn’t influenced the outcome of the trial, but recognized the need for stronger enforcement of state policies on juror use of social media. “Jurors must separate and insulate their jury service from their digital lives,” the court wrote.

As for permanent state employees, a 2010 National Association of State Chief Information Officers (NASCIO) survey found that 14 states had adopted social media policies and another seven had indicated that they were developing guidelines for acceptable use of social networks (the survey has not been updated, but NASCIO’s Charles Robb says that number has only increased in subsequent years).

Even that effort, though, has encountered hurdles. Take the lawsuit challenging the Missouri law that restricted teachers from communicating with students through social networks and other electronic means. The law required school districts to adopt policies that prohibited any such communications unless the conversations were entirely public -- the result of several controversies. In one, a Jefferson City, Mo., teacher’s sexual relationship with a 14-year-old student was uncovered because of 700 text messages the two had exchanged.

The Missouri State Teachers Association argued in the Circuit Court of Cole County that under the law, school employees would be subjected to a “chilling effect on their constitutional rights.” The court issued an injunction halting the law’s implementation two days before it was scheduled to take effect.

Missouri Gov. Jay Nixon then signed legislation that repealed portions of the law in October. The new language more narrowly requires school districts to issue guidance on what would constitute inappropriate communications on social networks. The teachers union still hasn’t dropped its lawsuit against the state, instead waiting to see what kind of policies school districts create.

“If they have a policy that is overreaching, we’ll pursue any avenue we need to, to make sure teachers rights are protected in that particular district,” Todd Fuller, a spokesman for the teachers union, told Government Technology (which, like Governing, is owned by e.Republic Inc.). “If we have to go to the length of suing an individual school district, we’ll do it.”

Meanwhile, the digital culture continues to evolve, bringing with it new challenges and risks. But the key to finding the road to good governance on these issues is for lawmakers to educate themselves on emerging technologies. “The theme of protecting and serving my constituents doesn’t change,” Maryland’s Tarrant says. “Whether it be high-tech or no-tech, I have to look out for them."

Dylan Scott (@DylanLScott) graduated from the E.W. Scripps School of Journalism at Ohio University in 2010. While there, he won an Associated Press award for Best Investigative Reporting for a series of stories on the university’s structural deficit. He then worked at the Las Vegas Sun and Center for Education Reform before joining Governing. He has reported on the Supreme Court’s consideration of the Affordable Care Act and various education reform movements in state and local government. When out of the office, Dylan spends his time watching classic films and reading fantasy fiction (most recently: A Song of Ice and Fire by George R.R. Martin).